Com. v. Graziano

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtBefore TAURO; BRAUCHER
Citation368 Mass. 325,331 N.E.2d 808
Decision Date09 July 1975
PartiesCOMMONWEALTH v. Eugene GRAZIANO (and a companion case 1 ).

Page 808

331 N.E.2d 808
368 Mass. 325
COMMONWEALTH
v.
Eugene GRAZIANO (and a companion case 1).
Supreme Judicial Court of Massachusetts, Hampden.
Argued April 8, 1975.
Decided July 9, 1975.

Page 809

Robert M. Santaniello, Norfolk (Jay M. Forgotson, Springfield, with him), for defendant Graziano.

[368 Mass. 326] John T. McDonough, Asst. Dist. Atty. (Daniel E. O'Malley, Springfield, with him), for the Commonwealth.

Efrem A. Gordon, Springfield, for defendant Facente.

Before [368 Mass. 325] TAURO, C.J., and BRAUCHER, HENNESSEY, KAPLAN and WILKINS, JJ.

[368 Mass. 326] BRAUCHER, Justice.

Each of the two defendants appeals from convictions of armed robbery and murder in the second degree. G.L. c. 278, §§ 33A--33G. We reverse the convictions and order a new trial because of error in restricting the defendants' cross-examination of the principal prosecution witness. We also disapprove references, in the prosecutor's summation to the jury, to the ethnic origin of the defendants and some of their witnesses.

The victim, William Griffin, a black man, the proprietor of a package store in Springfield, was murdered on the evening of Labor Day, September 4, 1972. His body was found by the police at 10:30 P.M. in front of his store. The cause of death was a .32 caliber gunshot wound in his chest. Paper money was lying on the floor of the store and on a counter, and some $200 was missing.

The case against the defendants depended entirely on the testimony of John Owens, Jr., a black man, an entertainer and paid informer for the Federal Bureau of Narcotics and Dangerous Drugs. He testified that on the day of the murder he had been with the defendant Graziano from about 11 A.M. until after 10 P.M., and that the defendant Facente and two men named Cash and Dino had been with them during parts of that period. Owens testified to conversations, in which Graziano participated in Facente's presence, about collecting $8,500 Griffin owed them for cocaine. Between 5 P.M. and 6 P.M., Owens said, he and Graziano went to Griffin's store and had a conversation about the money. Later that evening Owens, Graziano, Facente and Dino returned to the store. Owens stayed in the car with the motor running while the other three, each armed with a gun, entered the store. Through the window of the store Owens saw Griffin and Graziano talking, saw Graziano [368 Mass. 327] throw up his hands, heard a shot, and saw Graziano reaching toward the cash register. The three men then returned to the car and Facente drove them away.

There was very little corroboration of Owens's account of these events. A woman friend of Owens and Graziano testified

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that she had been at the package store about 5 P.M., that Graziano and a black man, but not Owens, were present with Griffin, and that Graziano threatened to kill Griffin. Several Federal agents testified to meetings between Owens and one or both of the defendants, but at other times and places. A number of defense witnesses contradicted details of Owens's account of the events of the day of the crime. Owens was in contact with Federal agents and Springfield police on days following the murder, but told what he had seen only after he was taken into custody some three weeks later. At the time of trial he was in jail on a charge of being an accessory to the murder.

The defendants presented extensive alibi evidence. Each testified in detail to his whereabouts on September 4, 197i, giving locales different at all material times from those given by Owens. Numerous witnesses corroborated particulars of their testimony, which placed them together with the witness Cordi from before 6 P.M. until after 10:30 P.M.

The cases were tried together on nineteen trial days from January 9 to February 2, 1973, and after trial hearings were held on two motions for a new trial filed by each defendant. Some 2,743 pages of transcript are before us, disclosing eighty exceptions by the defendant Graziano and 120 by the defendant Facente. Each defendant argues numerous assignments of error. We consider only the denial of the motions of the defendant Facente for directed verdicts, the claim of both defendants that cross-examination of Owens was unduly restricted, and their claim that the prosecutor's summation to the jury was improper.

[368 Mass. 328] 1. Facente's motions for directed verdicts. The defendant Facente argues that the evidence fails to show that he was involved in a common scheme to commit armed robbery, relying on the principle that 'mere presence at the commission of the wrongful act and even failure to take affirmative steps to prevent it do not render a person liable as a participant.' Commonwealth v. Benders, --- Mass. ---, ---, a 282 N.E.2d 405 (1972). Commonwealth v. Clark, --- Mass. ---, ---, b 295 N.E.2d 163 (1973).

Considered in the light most favorable to the Commonwealth, however, the evidence warranted an inference that Facente was a participant in a common enterprise to threaten and rob Griffin. According to Owens, Facente and Graziano were together continuously most of the day of the crime. Facente was present when the problem of collecting money from Griffin was discussed and when Graziano asked Owens to kill Griffin. Facente said, 'We're going to take a ride up there,' and told Owens to drive on the fatal trip. Facente entered the store with two other armed men, while Owens stayed in the car with the motor running. After the shooting, the three men left the store in 'a normal walk,' and Facente told Owens to push over and drove the car away.

Although there was evidence that the purpose of the visit to the store was to warn Griffin to raise the money within twenty-four hours, an inference was nevertheless warranted that the defendants intended to confront Griffin and take whatever money he then had. Cf. Commonwealth v. Venuti,315 Mass. 255, 258, 52 N.E.2d 392 (1943); Commonwealth v. Flynn,--- Mass. ---, ---, c 287 N.E.2d 420 (1972). Facente could be found guilty of murder even though killing was not part of the common plan. Commonwealth v. Devereaux, 256 Mass. 387, 395, 152 N.E. 380 Commonwealth v. Devlin, 335...

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116 practice notes
  • Commonwealth v. Wray, No. 14–P–368.
    • United States
    • Appeals Court of Massachusetts
    • September 28, 2015
    ...requirements of rule 22.5 See Commonwealth v. Jewett, 392 Mass. 558, 562, 467 N.E.2d 155 (1984), quoting from Commonwealth v. Graziano, 368 Mass. 325, 330, 331 N.E.2d 808 (1975) (counsel is “not required to make further efforts ‘in the face of the judge's unequivocal adverse ruling’ ”); Com......
  • Com. v. Soares
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • March 8, 1979
    ...of Italian descent from the jury would, if established, fall within this area of prohibited practice. Cf. Commonwealth v. Graziano, 368 Mass. 325, 331 N.E.2d 808 36 The practice referred to by Brown, J., concurring in Commonwealth v. Flowers, supra, is consistent with this view. We note the......
  • Com. v. Scott
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • December 17, 1990
    ...to show that another person committed the crime or had the motive, intent and opportunity to commit it." Commonwealth v. Graziano, 368 Mass. 325, 329, 331 N.E.2d 808 (1975). See, e.g., Commonwealth v. Keizer, 377 Mass. 264, 267, 385 N.E.2d 1001 (1979); Commonwealth v. Murphy, 282 Mass. 593,......
  • Commonwealth v. Mccowen, SJC–10654.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • December 10, 2010
    ...in the brutal rape and murder of the victim more than one and one-half years earlier.25 See [939 N.E.2d 761] Commonwealth v. Graziano, 368 Mass. 325, 329–330, 331 N.E.2d 808 (1975). The defendant also contends that he is entitled to a new trial because the prosecutor failed to reveal admini......
  • Request a trial to view additional results
116 cases
  • Commonwealth v. Wray, No. 14–P–368.
    • United States
    • Appeals Court of Massachusetts
    • September 28, 2015
    ...requirements of rule 22.5 See Commonwealth v. Jewett, 392 Mass. 558, 562, 467 N.E.2d 155 (1984), quoting from Commonwealth v. Graziano, 368 Mass. 325, 330, 331 N.E.2d 808 (1975) (counsel is “not required to make further efforts ‘in the face of the judge's unequivocal adverse ruling’ ”); Com......
  • Com. v. Soares
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • March 8, 1979
    ...of Italian descent from the jury would, if established, fall within this area of prohibited practice. Cf. Commonwealth v. Graziano, 368 Mass. 325, 331 N.E.2d 808 36 The practice referred to by Brown, J., concurring in Commonwealth v. Flowers, supra, is consistent with this view. We note the......
  • Com. v. Scott
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • December 17, 1990
    ...to show that another person committed the crime or had the motive, intent and opportunity to commit it." Commonwealth v. Graziano, 368 Mass. 325, 329, 331 N.E.2d 808 (1975). See, e.g., Commonwealth v. Keizer, 377 Mass. 264, 267, 385 N.E.2d 1001 (1979); Commonwealth v. Murphy, 282 Mass. 593,......
  • Commonwealth v. Mccowen, SJC–10654.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • December 10, 2010
    ...in the brutal rape and murder of the victim more than one and one-half years earlier.25 See [939 N.E.2d 761] Commonwealth v. Graziano, 368 Mass. 325, 329–330, 331 N.E.2d 808 (1975). The defendant also contends that he is entitled to a new trial because the prosecutor failed to reveal admini......
  • Request a trial to view additional results

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